8319545.1 LO140-416

Case No.: S243855

In The Supreme Court

of the State of California

ASSOCIATION FOR LOS ANGELES DEPUTY SHERIFFS,

Petitioner,

vs.

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE

COUNTY OF LOS ANGELES,

Respondent.

LOS ANGELES COUNTY SHERIFF’S DEPARTMENT, et al.,

Real Parties in Interest

______________________________

On Review From The Court Of Appeal For the Second Appellate District,

Division 8

Civil No.: B280676

After An Appeal From the Superior Court of Los Angeles County

Judge James C. Chalfant

Case Number BS166063

REAL PARTIES IN INTEREST’S REPLY TO PETITIONER’S

ANSWER TO PETITION FOR REVIEW

GEOFFREY S. SHELDON, BAR NO. 185560

ALEX Y. WONG, BAR NO. 217667

LIEBERT CASSIDY WHITMORE

6033 WEST CENTURY BOULEVARD, 5TH FLOOR

LOS ANGELES, CALIFORNIA 90045

TEL: 310.981.2000

Attorneys for Real Parties in Interest LOS ANGELES COUNTY

SHERIFF’S DEPARTMENT, SHERIFF JIM MCDONNELL and COUNTY

OF LOS ANGELES

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TABLE OF CONTENTS

Page

I. THE ANSWER DOES NOT REFUTE THAT REVIEW OF THIS CASE IS NECESSARY TO SETTLE IMPORTANT QUESTIONS OF LAW (CAL. R. CT. 8.500(b)(1) ........................... 5

A. ALADS CANNOT DEMONSTRATE THAT THE USE OF BRADY ALERTS “VIOLATES WELL ESTABLISHED LAW,” BECAUSE THERE IS NO PRIOR CASE LAW PROHIBITING THE PRACTICE .............................................................................. 5

B. THE HOLDING IN JOHNSON WAS BASED ON THE ASSUMPTION THAT BRADY ALERTS ARE PERMISSIBLE AND COMPATIBLE WITH THE PITCHESS PROCEDURES .................................................... 8

C. BRADY ALERTS, USED BY NUMEROUS AGENCIES THROUGHOUT THE STATE, ARE COMPATIBLE WITH THE PITCHESS MOTION PROCEDURES AND REDUCE THE NEED FOR GROUNDLESS PITCHESS MOTIONS .............................. 12

D. THE USE OF BRADY ALERTS OR BRADY LISTS DOES NOT USURP THE TRIAL JUDGE’S GATEKEEPER FUNCTION NOR WILL IT ERASE ANY CONFIDENTIALITY PROTECTION FOR PEACE OFFICER DISCIPLINARY RECORDS ................ 15

II. CONCLUSION ................................................................................ 16

III. CERTIFICATE OF WORD COUNT .............................................. 17

IV. PROOF OF SERVICE ..................................................................... 18

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TABLE OF AUTHORITIES

Page(s)

Federal Cases

Brady v. Maryland (1963) 373 U.S. 83 .......................................................................... passim

State Cases

Abatti v. Superior Court (2003) 112 Cal.App.4th 39 ...................................................................... 7

City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411 .................................................................... 6

City of San Diego v. Superior Court (1981) 136 Cal. App. 3d 236 ................................................................... 6

Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278 .............................................................................. 6

Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272 ............................................................................ 6

Davis v. City of San Diego (2003) 106 Cal.App.4th 893 .................................................................... 6

Dibb v. County of San Diego (1994) 8 Cal.4th 1200 .............................................................................. 6

Garden Grove Police Department v. Superior Court (2001) 89 Cal.App.4 430 ......................................................................... 7

Hackett v. Superior Court (1993) 13 Cal. App. 4th 96 ...................................................................... 6

Long Beach Police Officers Assn. v. City of Long Beach (2014) 59 Cal.4th 59 ................................................................................ 6

People v. Gutierrez (2003) 112 Cal.App.4th 1463 .................................................................. 7

People v. Superior Court (“Johnson”) (2015) 61 Cal.4th 696 ..................................................................... passim

People v. Superior Court (Gremminger) (1997) 58 Cal.App.4th 397 ...................................................................... 7

State Statutes

Penal Code section 832.7 .............................................................................. 5

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Penal Code section 832.8 .............................................................................. 5

Evidence Code section 1043 ......................................................................... 5

Evidence Code section 1044 ......................................................................... 5

Evidence Code section 1045 ......................................................................... 5

Government Code section 3305.5 ................................................................. 7

Government Code section 6250 .................................................................... 6

Miscellaneous

98 Ops.Cal.Atty.Gen 54 (2015) ..................................................................... 5

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TO THE HONORABLE CHIEF JUSTICE TANI G. CANTIL-

SAKAUYE AND THE HONORABLE ASSOCIATE JUSTICES OF THE

SUPREME COURT OF THE STATE OF CALIFORNIA:

Real Parties in Interest Los Angeles County Sheriff’s Department,

Sheriff Jim McDonnell and County of Los Angeles provide the following

Reply in response to the Answer of Petitioner Association of Los Angeles

Deputy Sheriffs to Real Parties’ Petition for Review.

I. THE ANSWER DOES NOT REFUTE THAT REVIEW OF

THIS CASE IS NECESSARY TO SETTLE IMPORTANT

QUESTIONS OF LAW (CAL. R. CT. 8.500(b)(1)

A. ALADS CANNOT DEMONSTRATE THAT THE USE

OF BRADY ALERTS “VIOLATES WELL

ESTABLISHED LAW,” BECAUSE THERE IS NO

PRIOR CASE LAW PROHIBITING THE PRACTICE

ALADS asserts that the “Brady alert” (i.e., notifications that an

officer’s personnel records might contain exculpatory or impeachment

information) process proposed to be used by Real Parties, analyzed by the

Attorney General in 98 Ops.Cal.Atty.Gen 54 (2015), and actually utilized

by the SFPD in People v. Superior Court (“Johnson”) (2015) 61 Cal.4th

696, “violates well established law.” (Answer, p. 16.) However,

conspicuously absent from the Answer are citations to any cases (other than

the Court of Appeal decision in ALADS) which hold that a law enforcement

agency violates the “Pitchess statutes” (i.e., California Penal Code §§ 832.7

and 832.8 and Evidence Code §§ 1043 through 1045) when it alerts

prosecutors that an officer’s personnel file may contain Brady material. In

fact, the vast majority of the cases to which ALADS cites do not address

Brady at all. Rather, most are cases which address disclosure of peace

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officer personnel records to the press pursuant to the California Public

Records Act, Government Code section 6250, et seq. (“CPRA”), or to the

public generally. (See, Copley Press, Inc. v. Superior Court (2006) 39

Cal.4th 1272, Long Beach Police Officers Assn. v. City of Long Beach

(2014) 59 Cal.4th 59, 73, 71, Commission on Peace Officer Standards &

Training v. Superior Court (2007) 42 Cal.4th 278, 298, Davis v. City of San

Diego (2003) 106 Cal.App.4th 893, 902, City of Hemet v. Superior Court

(1995) 37 Cal.App.4th 1411, 1430, County of Los Angeles v. Superior

Court (1993) 18 Cal.App.4th 588, 599.)

Real Parties concede that, in the CPRA context, the statutorily

created privacy rights of peace officers in their personnel records prevail

over the press and general public’s interest in having access to those

records under the CPRA. However, the public’s interest in accessing

information concerning the people’s business under the CPRA is

completely distinct from a criminal defendant’s constitutional due process

rights to receive exculpatory and impeachment information under Brady

because his or her freedom is at stake. The CPRA cases simply have no

bearing whatsoever on whether an officer’s privacy rights must yield to a

criminal defendant’s due process rights.

Other cases to which ALADS cites address potential disclosure of

peace officer personnel records pursuant to a county commission’s

subpoena power (Dibb v. County of San Diego (1994) 8 Cal.4th 1200,

1210, fn. 5) or through the use of civil discovery procedures (Davis v. City

of Sacramento (1994) 24 Cal.App.4th 393, 401, Hackett v. Superior Court

(1993) 13 Cal. App. 4th 96, City of San Diego v. Superior Court (1981) 136

Cal. App. 3d 236). These cases, like the CPRA cases, are also clearly

irrelevant.

7 8319545.1 LO140-416

With respect to the remaining cases to which ALADS cites which

actually do involve the Pitchess procedures in the context of criminal

discovery, those cases still do not address the specific question at issue here

of whether limited Brady alerts from one member of the prosecution team

to another violate the Pitchess statutes. (See, e.g., Garden Grove Police

Department v. Superior Court (2001) 89 Cal.App.4 430, 432, People v.

Gutierrez (2003) 112 Cal.App.4th 1463, 1475, Abatti v. Superior Court

(2003) 112 Cal.App.4th 39, 56, People v. Superior Court (Gremminger)

(1997) 58 Cal.App.4th 397, 404-407.)

While ALADS further contends that the release of a Brady list (i.e.,

list of names of peace officers identified as potentially having Brady

material in their personnel files) “flies directly in the face of these

decisions,” again not a single one of the cited cases mentions, much less

addresses the permissibility of maintaining or disclosing a Brady list. In

fact, Government Code section 3305.5, which prohibits public agencies

from taking punitive action solely because an officer’s name has been

placed on a Brady list, clearly demonstrates that the legislature is aware that

Brady lists are a tool frequently used by members of the prosecution team.

Given ALADS’ failure to cite to a single published case (other than

the underlying ALADS decision) which provides that the Brady alert and

Brady list procedures utilized by law enforcement and prosecutorial

agencies throughout the state (see Amici Curiae letters) is, in fact, illegal,

the state of the law (at least as ALADS interprets it) is anything but “well

established.” Accordingly, the Court should grant review to address this

important question of law.

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B. THE HOLDING IN JOHNSON WAS BASED ON THE

ASSUMPTION THAT BRADY ALERTS ARE

PERMISSIBLE AND COMPATIBLE WITH THE

PITCHESS PROCEDURES

ALADS argues that this Court’s analysis in Johnson “makes clear

that the lawfulness of the procedure created by the SFPD under Bureau

Order 2010-01 was neither in question nor determined by this Court.”

(ALADS’ Answer to Petition for Review (“Answer”), p. 15.) While Real

Parties agree the Court did not expressly rule upon the legality of the Brady

alerts that the SFPD provided to prosecutors, it is abundantly clear that key

portions of the Johnson decision were necessarily premised upon such

Brady alerts being permissible and compatible with the Pitchess motion

procedure.

One likely reason that the lawfulness of the SFPD’s practice was

“neither in question nor determined by this Court” is that the Court simply

took it as understood that the practice was permissible. This is evident in

the way the Court framed the issues presented in the case for review.

Specifically, in discussing the procedural history of the case, this Court

explained the scope of its inquiry after it granted the SFPD’s and district

attorney’s petitions for review:

We granted the police department's and district attorney's petitions for review and stayed the underlying criminal matter. Later, we requested the parties to brief the question of whether “the prosecution's obligation under Brady v. Maryland (1963) 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (Brady) and its progeny [would] be satisfied if it simply informs the defense of what the police department has informed it (that the two officers' personnel files might contain Brady material), which would allow the defense to

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decide for itself whether to seek discovery of that material pursuant to statutory procedures.”

(Id. at 709.)

If the SFPD’s practice of providing Brady alerts to the prosecution

was prohibited by the Pitchess statutes, and the law on this was “well

settled” as ALADS contends, then it is unlikely that this Court could have

specifically requested briefing on whether the prosecution’s Brady

obligations would “be satisfied if it simply informs the defense of what the

police department has informed it [in violation of the Pitchess statutes]

(that the two officers’ personnel files might contain Brady material).”

The fact of the matter is that if the SFPD’s use of Brady alerts was

clearly a violation of the Pitchess statutes, then significant portions of the

Johnson opinion would be rendered meaningless and unreliable since the

factual circumstances presented by the case could never be legally

replicated. According to ALADS, portions of the Johnson decision should

actually state as follows:

Because criminal defendants and the prosecution have equal ability to seek information in confidential personnel records, and because such defendants, who can represent their own interests at least as well as the prosecution and probably better, have the right to make a Pitchess motion whether or not the prosecution does so, we also conclude that the prosecution fulfills its Brady duty as regards the police department's [illegal] tip if it informs the defense of what the police department informed it [in violation of the Pitchess statutes], namely, that the specified records might contain exculpatory information. That way, defendants may decide for themselves whether to bring a Pitchess motion. The information the police department has provided [in violation of the Pitchess statutes], together with some explanation of how the officers' credibility might be relevant to the case, would satisfy the threshold showing a defendant must make in order to trigger judicial

10 8319545.1 LO140-416

review of the records under the Pitchess procedures.

(Johnson, supra, 61 Cal.4th at 705-706.)

When the police department informed the district attorney [in violation of the Pitchess statutes] that the officers' personnel records might contain Brady material, the prosecution had a duty under Brady, supra, 373 U.S. 83, 83 S.Ct. 1194, to provide this information to the defense. No one disputes that. The question before us is whether the obligation goes beyond that.

(Id. at 715.)

Because a defendant may seek potential exculpatory information in those personnel records just as well as the prosecution, the prosecution fulfills its Brady obligation if it shares with the defendant any information it has regarding whether the personnel records contain Brady material, and then lets the defense decide for itself whether to file a Pitchess motion. In this case, this means the prosecution fulfilled its obligation when it informed defendant of what the police department had told it [in violation of the Pitchess statutes], namely, that the personnel records of the officers in question might contain Brady material, and that the officers are important witnesses.

(Id. at 716.)

ALADS’ proffered interpretation of Johnson is simply nonsensical.

As much as ALADS would like to ignore the underlying facts in Johnson,

and claim that the facts were unnecessary to the Court’s conclusions, the

Court’s conclusions in the case were not reached in a vacuum and cannot be

separated from those facts. In Johnson, the Court was clear that its

conclusions were based upon the facts of the case, which included the fact

the SFPD provided Brady alerts to the prosecution:

In this case, the police department has laudably established procedures to

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streamline the Pitchess/Brady process. It notified the prosecution, who in turn notified the defendant, that the officers' personnel records might contain Brady material. A defendant's providing of that information to the court, together with some explanation of how the officer's credibility might be relevant to the proceeding, would satisfy the showing necessary under the Pitchess procedures to trigger in camera review. Moreover, as we have noted, defendants are always permitted to file their own Pitchess motion even without any indication from the police department (through the prosecution) that the records might contain Brady material and, indeed, even if, hypothetically, the prosecution had informed them that the police department had said the records do not contain Brady material. The defense is not required simply to trust the prosecution or police department but may always investigate for itself.

For these reasons, we conclude that, under these circumstances, permitting defendants to seek Pitchess discovery fully protects their due process right under Brady, supra, 373 U.S. 83, 83 S.Ct. 1194, to obtain discovery of potentially exculpatory information located in confidential personnel records. The prosecution need not do anything in these circumstances beyond providing to the defense any information it has regarding what the records might contain—in this case informing the defense of what the police department had informed it.

(Id. at 721-722.)

Based on the foregoing, it is abundantly clear that key portions of the

Johnson decision were dependent upon Brady alerts being permissible and

compatible with the Pitchess motion procedure. Accordingly, given the

apparent conflict between the factual underpinnings of Johnson, and the

Court of Appeal’s decision in ALADS, the Court should grant review to, at

a minimum, settle the conflict created by the ALADS decision.

///

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C. BRADY ALERTS, USED BY NUMEROUS AGENCIES

THROUGHOUT THE STATE, ARE COMPATIBLE

WITH THE PITCHESS MOTION PROCEDURES AND

REDUCE THE NEED FOR GROUNDLESS PITCHESS

MOTIONS

ALADS contends that Real Parties are incorrect in asserting that the

Court of Appeal’s ALADS decision represents the true “sea change” in

criminal prosecutions. According to ALADS, the Court’s approval of the

Brady alert procedure would “ensure fishing expeditions and increase the

frequency of filed Pitchess motions exponentially.” (Answer, p. 25-26.) To

make this argument, ALADS contends that the ALADS decision itself

“effects no change whatsoever to existing Pitchess and Brady

jurisprudence.” ALADS’ argument is wrong for a number of reasons.

First, the ALADS decision clearly affects “existing Pitchess and

Brady jurisprudence” to the extent it undermines in the factual

underpinnings of Johnson, as discussed above. Second, the ALADS

decision is the first and only published decision to conclude that the use of

Brady alerts by law enforcement and prosecution agencies violates the

Pitchess statutes. Third, as evidence of the sweeping impact the ALADS

decision will have on Pitchess motion practice, this Court needs look no

further than the numerous Amici Curiae letters that have been filed in

support of Real Parties’ petition by various prosecutorial agencies and

organizations throughout the state, including the California Department of

Justice, the California District Attorneys Association, the City and County

of San Francisco City Attorneys Office, the City and County of San

Francisco District Attorney’s Office and the Federal Public Defender. As

indicated in Amicus Curiae San Francisco City Attorney’s letter, at the time

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Johnson was litigated, the SFPD’s understanding was that at least thirteen

counties in California employed a Brady alert procedure similar to the one

used by SFPD. In the wake of this Court's decision, that number has

reportedly expanded to twenty or more counties. Accordingly, the Brady

alert procedures being utilized in more than one third of California’s 58

counties are now in question.

ALADS also makes the nonsensical claim that Real Parties’ position

has the effect of “[l]owering the minimum threshold showing needed to

obtain in camera review of discipline records from materiality and

reasonable belief the agency has the type of information sought, to his

supervisor thinks he’s a liar.” (Answer, p. 26.) To the contrary, Brady

alerts do not in any way affect the minimum threshold showing needed to

obtain in camera review. Rather, Brady alerts simply streamline the

Pitchess motion process by providing a moving party with a basis for

declaring a “reasonable belief the agency has the type of information

sought.” (See Johnson, supra, 61 Cal.4th at 721 [“A defendant's providing

of that information to the court, together with some explanation of how the

officer's credibility might be relevant to the proceeding, would satisfy the

showing necessary under the Pitchess procedures to trigger in camera

review.”].)

Contrary to ALADS’ position, Brady alerts reduce the incidence of

“fishing expeditions” and unmeritorious Pitchess motions. Logically, if a

Pitchess motion is supported, at least in part, by the fact the agency issued a

Brady alert on an officer, or an officer’s name appears on a Brady list, there

will actually be a factual basis behind the claimed “reasonable belief the

agency has the type of information sought.” Accordingly, a Pitchess

motion that is supported by a Brady alert is the opposite of a “fishing

14 8319545.1 LO140-416

expedition.” Furthermore, even though a criminal defendant is entitled to

bring a Pitchess motion irrespective of whether a Brady alert has been

made, the fact a law enforcement agency regularly engages in the Brady

alert process may have the beneficial effect of minimizing the filing of

unnecessary Pitchess motions where no such alert has been issued

regarding a given officer.

On the other hand, if law enforcement agencies are precluded under

the Pitchess statutes from providing Brady alerts to prosecutors,

prosecutors will essentially be required to file Pitchess motions simply to

ascertain whether an officer has Brady information in his or her personnel

file that must be disclosed to the defendant (or risk the consequences of a

possible Brady violation). Without Brady alerts, attempts to pursue Brady

material through the Pitchess process will occur in a factual vacuum,

devoid of any basis for believing an officer has Brady information in his or

her file. Any Pitchess motions that are filed under such circumstances will,

by definition, be “fishing expeditions.” Thus, contrary to ALADS claims,

both the number of Pitchess motions, and the number of pure fishing

expeditions will increase dramatically if Brady alerts are barred by the

Pitchess statutes.

In light of the potential impact upon criminal courts, as well as the

uncertainty now cast upon the Brady alert procedures utilized by law

enforcement agencies and prosecutorial agencies throughout the state, the

Court should grant review to settle these important questions of law.

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15 8319545.1 LO140-416

D. THE USE OF BRADY ALERTS OR BRADY LISTS

DOES NOT USURP THE TRIAL JUDGE’S

GATEKEEPER FUNCTION NOR WILL IT ERASE

ANY CONFIDENTIALITY PROTECTION FOR

PEACE OFFICER DISCIPLINARY RECORDS

ALADS also argues that Real Parties’ intended Brady alert process,

the same process utilized by the SFPD and other agencies following the

Attorney General’s 2015 opinion, “improperly substitutes the Sheriff’s

Department’s or other public safety employer’s determination of relevance

and materiality for that of the trial court, which is statutorily charged with

the responsibility for making that determination.” (Answer, p. 22.) By

making this argument, ALADS clearly misunderstands the Brady alert

process, and how it fits into the Pitchess motion procedures as discussed at

length in Johnson. The Brady alert does not result in the disclosure of

anything beyond a name or list of names to a prosecutor and the fact the

personnel records of the subject officer(s) might contain Brady material. It

is merely the beginning of the process and the trial court always retains its

role as the ultimate gate keeper of access to the officer’s personnel records

and information contained therein.

Even after the prosecution, in fulfilling its Brady obligations, shares

with the criminal defendant the information it received from the law

enforcement agency (i.e., that the personnel records of the officers in

question might contain Brady material), both the prosecution and defense

are still required to bring Pitchess motions if they wish to obtain any

information actually contained in the personnel files. (See Johnson, supra,

61 Cal.4th at 716.) If there is no actual case in which a Pitchess motion can

be filed, there is obviously no need or ability for any party to access

16 8319545.1 LO140-416

information in the personnel records. ALADS’ “chicken little” assertion

that the Brady alerts proposed by Real Parties would somehow “erase any

confidentiality protection for peace officer disciplinary records” (Answer,

p. 23) is illogical and has no basis in reality.

Given ALADS’ immense confusion as to what is actually at stake,

the Court should grant review to settle the important questions of law

presented in the case and to provide the parties herein, as well as Amici

Curiae, clarification as to whether the Brady alert procedures are

permissible under existing law.

II. CONCLUSION

For all of the foregoing reasons, and as fully described in the Petition

for Review, Real Parties in Interest Los Angeles County Sheriff’s

Department, Sheriff Jim McDonnell and the County of Los Angeles

respectfully request that this Court grant the instant Petition for Review. Dated: October 10, 2017

By:

LIEBERT CASSIDY WHITMORE /s/ Geoffrey S. Sheldon

Geoffrey S. Sheldon Alex Y. Wong Attorneys for Real Parties in Interest LOS ANGELES COUNTY SHERIFF’S DEPARTMENT, SHERIFF JIM MCDONNELL and COUNTY OF LOS ANGELES

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III. CERTIFICATE OF WORD COUNT

(Cal. Rules of Court, Rule 8.204(c)(1))

I, Alex Y. Wong, certify in accordance with California Rules of

Court, rule 8.504(d) that this brief (excluding the items that are not counted

toward the maximum length) contains 3,169 words as calculated by the

Microsoft Word 2010 software with which it was written.

I certify under penalty of perjury under the laws of the State of

California that the foregoing is true and correct.

Executed on October 10, 2017, in Los Angeles, California.

By: /s/ Alex Y. Wong_______ Alex Y. Wong Attorney for Petitioner

18 8319545.1 LO140-416

IV. PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am employed in the County of Los Angeles, State of California. I

am over the age of 18 and not a party to the within action; my business

address is: 6033 West Century Boulevard, 5th Floor, Los Angeles,

California 90045.

On October 10, 2017, I served the foregoing document(s) described

as REAL PARTIES IN INTEREST’S REPLY TO PETITIONER’S

ANSWER TO PETITION FOR REVIEW in the manner checked below

on all interested parties in this action addressed as follows: Richard A. Shinee, #062767 Elizabeth J. Gibbons, #147033 GREEN & SHINEE, A.P.C. 16055 Ventura Blvd., Suite 1000 Encino, CA 91436 Telephone: (818) 986-2440 Facsimile: (818) 789-1503 Email: gsras@socal.rr.com Attorneys for Petitioner Association for Los Angeles Deputy Sheriffs

Los Angeles Superior Court Dept. 85 111 North Hill Street Los Angeles, CA 90012-3117 Telephone: (213) 830-0785

Court of Appeal, State of California Second Appellate District 300 S. Spring St.,2nd Floor N. Tower Los Angeles, CA 90013

California Attorney General 300 S. Spring Street, #1700 Los Angeles, CA 90013 Telephone: (213) 897-2000

(BY U.S. MAIL) I am “readily familiar” with the firm’s

practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.

19 8319545.1 LO140-416

(BY FACSIMILE) I am personally and readily familiar with the business practice of Liebert Cassidy Whitmore for collection and processing of document(s) to be transmitted by facsimile. I arranged for the above-entitled document(s) to be sent by facsimile from facsimile number 310.337.0837 to the facsimile number(s) listed above. The facsimile machine I used complied with the applicable rules of court. Pursuant to the applicable rules, I caused the machine to print a transmission record of the transmission, to the above facsimile number(s) and no error was reported by the machine. A copy of this transmission is attached hereto.

(BY OVERNIGHT MAIL) By overnight courier, I arranged for the above-referenced document(s) to be delivered to an authorized overnight courier service, FedEx, for delivery to the addressee(s) above, in an envelope or package designated by the overnight courier service with delivery fees paid or provided for.

(BY ELECTRONIC SERVICE) By electronically mailing a true and correct copy through Liebert Cassidy Whitmore’s electronic mail system from bprater@lcwlegal.com to the email address(es) set forth above. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful.

(BY PERSONAL DELIVERY) I delivered the above document(s) by hand to the addressee listed above.

Executed on October10, 2017, at Los Angeles, California.

I declare under penalty of perjury under the laws of the State of

California that the foregoing is true and correct.

/s/ Beverly T. Prater

Beverly T. Prater